Fetus dies in suicide attempt, is it murder?

In December 2010, Bei Bei Shuai, who was eight months pregnant at the time, swallowed rat poison when her boyfriend broke up with her.

Doctors successfully treated Shuai and delivered her premature daughter, Angel, by caesarian section. A few days later, Angel bled into her brain and died.

Indiana prosecutors charged Shuai with murder. According to media reports, she spent more than a year in jail before a higher court that declined to dismiss the murder charge at least ordered a lower court to set bond.

Prosecutors offered Shuai a plea bargain: Plead guilty to attempted feticide, and we’ll drop the murder charge. The best-case scenario would be a suspended sentence; the worst case, up to 20 years in prison.

Shuai declined.

“She intends to fight these charges vigorously,” her attorney said. “She doesn’t want any other woman to go through what she has gone through.”

Prosecutors said a suicide note proved Shuai wanted her baby to die with her. But her attorney argued that Shuai’s primary intent wasn’t to kill the baby. She intended to kill herself and care for her baby in the afterlife.

Friend-of-the-court briefs filed in Shuai’s support say that a conviction would be a precedent that would allow pregnant women to be prosecuted if they engaged in behaviors such as smoking that are known to endanger the fetus.

Lots of things endanger fetuses and cause miscarriages. Behaviors generally disapproved of in pregnant women, such as drinking and drug use, do so. So does a failure to seek prenatal care. So does lack of strict compliance with medical advice for women with diseases such as diabetes and high blood pressure. So does being overweight. Women who conceive late in life have a higher risk of abortion and birth defects. Crimes? Hardly. But where do you draw the line?

“One would think,” one of my colleagues wrote, “that there were more important cases/causes to pursue in Indiana than this unfortunate, wretched woman.”

“Brings the Taliban to mind,” another wrote.

Associated Press reports lack details that I’d like to know. I wonder why the doctors thought it was necessary to do a pre-term caesarian. I wonder how they determined definitively that the brain bleed three days after delivery was a consequence of Shuai’s suicide attempt. It probably was, but “probably” doesn’t cut it in a murder trial. I wonder if the prosecutors consulted with a forensic pathologist. If they did, I wonder what they were told. If they didn’t, I wonder why not.

Colorado law specifies that the coroner must investigate cases of “criminal abortion.” Would a precedent in this case require me to investigate all miscarriages to see whether the mother engaged in any behavior that might have caused her to lose the baby?

That’s not appealing.

At least I wouldn’t have to state whether the death of a miscarried fetus was natural or a homicide. As fetuses aren’t considered to have been alive, there’s no place on a fetal death certificate to record such an opinion.

chuser@durangoherald.com. Dr. Carol J. Huser, a forensic pathologist, served as La Plata County coroner from 2003 to 2012. She now lives in Florida and Maryland.